Obama, Security, and Sham History

We live in historic times. Certainly those who felt the power of the long polling lines, the nervous energy, and the spontaneous celebrations across the country on Nov. 4 will remember where they were, what they were doing, at that moment, for many years.

Some would rather these times weren't this historic. Bill Kristol at the Weekly Standard has written a somewhat (less than) generous opinion piece lamenting that more of the country didn't see things his way. He is concerned that we, as a country, are now suddenly at a greater security risk than we would have had a septuagenarian and his girl-novice sidekick been elected.

I grant Kristol his opinion. But his justification comes from a bizarre historical narrative. He suggests that the American electorate has, since WWII, followed a consistent pattern in voting. Republican administrations make us strong and feared about the world, and then we feel happy enough to elect Democratic presidents who muck things up by being soft and squishy.

Consider:

Encouraging Americans' tendency to take hard-won national security successes for granted--once they are won--is the key to how Democrats, in modern times, win presidential elections. Dwight Eisenhower pursued a cautious but not ineffective foreign policy. Voters were unimpressed by the peace and stability of 1960 and chose John Kennedy. Partly as a result of Kennedy's initial weakness, the Berlin Wall went up and the Cuban Missile Crisis followed--and then, partly out of a felt need of Lyndon Johnson's to appear strong, we escalated in Vietnam.

Let us forget for a moment that Eisenhower was elected primarily to extricate America from an unpopular war started by a fist-pounding Democrat, and that Kennedy campaigned as a stanch cold-warrior to the more moderate Nixon. Let us forget that the Soviets did not need anyone's permission to build the Berlin Wall and weren't "waiting around" to do it. Let's keep our eye on the larger narrative. Kristol continues:

The voters elected Richard Nixon to extricate us from the quagmire in Vietnam with honor, which he did, and Gerald Ford attempted to prevent the Democratic Congress from walking away from our ally and our responsibility. Voters decided, however, to give the presidency back to the party of JFK and LBJ--by this time more the party of George McGovern--and we got the Iranian revolution and the Soviet invasion of Afghanistan.

So Americans elected Ronald Reagan and George H.W. Bush, and--stunningly--they won the Cold War virtually without firing a shot. (Bush also drove Saddam Hussein from Kuwait.) Voters were able in 1992 to take peace for granted and to focus on domestic policy. "It's the economy, stupid" was stupid but successful just as its equivalents had been in 1976 and 1960.

Kristol is right that we elected Nixon to extricate ourselves from Vietnam, presumably with honor. He ended up bombing Cambodia. The bombing continued for years before he left with the same terms he could have gotten at the beginning of his tenure as president. Given the recent evidence that Kissenger may have sabotaged the peace talks under Johnson in order to prolong the war for an incoming Nixon administration, the idea of Nixon's failed Vietnam policy amounting to "peace with honor" is something of a joke. The Iranian Revolution occurred--if I read Kristol correctly--because we were not hard enough on Iran? As if the secret police we trained for the Shah and the support we gave him to keep Iran a client state was not enough. Would he prefer we had provided more weapons of repression to that regime? Does he really suppose that the Iranian revolutionaries cared who was president back in the United States? Nor did the election of Ronald Reagan do anything to convince the Soviets to leave Afghanistan. And the USSR's protracted presence in Afghanistan played its part in its own demise--a lesson we may want to take to heart before we jump into any more wars in the name of strength and national security.

What is most disheartening about Kristol's analysis are the assumptions that govern it. Events that occur during a presidency--carefully selected and pruned of any meaningful context--are attributed to the sitting president. One could just as easily construct a counter-narrative which is even more compelling.

Start with World War II, instead of avoiding it as Kristol does. Our Democratic president and his Democratic successor achieved the impossible: getting powerful, industrialized fascist countries to surrender unconditionally. Harry Truman, in his zeal to stop the totalitarian Soviet Union from expanding its reach, combatted communism in Korea. The American people, confident that we were powerful enough to stand some peace, elected Dwight D. Eisenhower. By the end of his term, the Soviet Union had achieved the H-Bomb, was more powerful than ever, and ready to move on Berlin and Cuba. Americans elected John F. Kennedy--a chest-thumping cold warrior--over the more moderate and level-headed Richard Nixon. Kennedy met the Russians face-to-face and took us to the brink of nuclear war in order to defend freedom, including engaging in a hot war in Vietnam. Nixon would be elected in 1968 to extricate us from the war, much as Eisenhower had before him. Nixon ended up pursuing a policy of appeasment with communist Russia and communist China. Reagan's administration fared no better than Carter's, given our meager victory in Grenada and the more substantial embarrassment that was Lebanon.

I could go on, but there is no point. The counter-narrative is just as empty and inspid as Kristol's narrative. I use it only as a heuristic device, and only to demonstrate that Barack Obama's election does not signal that a confident public believes it has been protected by the last administration and now is ready to "take a chance." Many Americans rightly believe that this last, failed presidency has seriously weakened us as a country, that we can no longer defend ourselves the way we might have eight years ago. Kristol's inability to acknowledge this simple truth is, on his part, both an intellectual and a moral failure.

Guantanamo, War, and the Rule of Law

A few reflections on a subject probably not on most people's minds on the eve of the Election: what to do with Guantanamo Bay and the prisoners we hold there. It is of great relief to me that both candidates have signaled their willingness to close Guantanamo and proceed in an honorable and legal fashion against the detainees, which includes releasing those who are not threats and who are held in error. The solution will require some practical policy decision-making as well as principled constitutional action. The most recent test of this is Kiyemba v. Bush, currently before the D.C. Circuit Court of Appeals. I am proud to have joined in an amicus brief supporting the release of the petitioners who--by the administration's own admission--are not and were never enemies of the United States and ought to be released post haste.

Elections are constitutional moments, and 2008 is something special in this regard. But we should not lose sight of the fact that one of the most important constitutional issues of our day was decided in the months leading up to this election, when the Republican Party made John McCain and not Mitt Romney its candidate. Romney, we should recall, promised to "double" Guantanamo. He repeatedly invoked the stark language of "good" and "evil" in his foreign policy discussions. And despite these moral absolutisms, he was not willing to repudiate the use of torture.

One constitutional issue for the electorate to decide has, therefore, been decided already. It is up to all of us now--or at least those of us who wish to see our government restored to lawful, rational, and moral behavior--to hold the next president accountable. Guantanamo must be closed, and the prisoners there either released or charged with crimes.

See you all on the 5th.

Not an endorsement, really...

Students of constitutional history need to monitor the actions of the next president--whomever he may be--over his first six months in office. Both the candidates have signaled their desire to end the executive excesses of the Bush Administration and restore something like dignity to the notion of constitutional government. Given that warrantless wiretapping is still an open issue, Guantanamo Bay remains open, and unaccountable military actions seem the norm these days, it is an enormously important that our next president demonstrate self-restraint. At the same time, the Congress is going to have to grow a pair if it is ever to restore constituional balance to the system. Back when revelations of George W. Bush's mendacity concerning the war in Iraq were coming to light, only Arlen Specter (a republican from Pennsylvania) talked seriously and openly about the possibility of impeachment. It would be nice if Congress prepared to defend its constitutional prerogatives, especially the power to declare war.

Meanwhile, I still harbor tremendous doubts about the Republican choice for President. Sadly, much of this comes from McCain's selection of Sarah Palin, who has now been identified by some as the "hope" of the Republican Party. If this is true, then the Republican Party deserves the drubbing it will receive on November 4. It deserves to become a permanent minority party. As George Will--in something a little more than a statement of good will and a little less than an endorsement of Obama--put it:

Some polls show that Palin has become an even heavier weight in John McCain's saddle than his association with George W. Bush. Did McCain, who seems to think that Palin's never having attended a "Georgetown cocktail party" is sufficient qualification for the vice presidency, lift an eyebrow when she said that vice presidents "are in charge of the United States Senate"?

She may have been tailoring her narrative to her audience of third-graders, who do not know that vice presidents have no constitutional function in the Senate other than to cast tie-breaking votes. But does she know that when Lyndon Johnson, transformed by the 1960 election from Senate majority leader into vice president, ventured to the Capitol to attend the Democratic senators' weekly policy luncheon, the new majority leader, Montana's Mike Mansfield, supported by his caucus, barred him because his presence would be a derogation of the Senate's autonomy?

Perhaps Palin's confusion about the office for which she is auditioning comes from listening to its current occupant. Dick Cheney, the foremost practitioner of this administration's constitutional carelessness in aggrandizing executive power, regularly attends the Senate Republicans' Tuesday luncheons. He has said jocularly that he is "a product" of the Senate, which pays his salary, and that he has no "official duties" in the executive branch. His situational constitutionalism has, however, led him to assert, when claiming exemption from a particular executive order, that he is a member of the legislative branch and, when seeking to shield certain of his deliberations from legislative inquiry, to say that he is a member of the executive branch.

McCain has been careless in this campaign, and it does not bode well for America should he be elected. He seems to fly by the seat of his pants, makes decisions from the gut, and has abandoned his former virtues of moderation, independent thought, and coolness. The Economist opined the same sentiment when it endorsed Obama earlier this week--the editors clearly pined for the old McCain, but cannot see him leading in any real way as President.

As a constitutional scholar concerned about the preservation of rule of law in this republic and the advancement of human rights worldwide, it matters less to me who is president than what the next president does. Personally, I can't wait until this election is over. It has been exciting, but it is quickly approaching tedious. I'm looking forward to casting my ballot on Tuesday. I'm then looking forward to holding whoever is elected to account for his actions for the next four years. And I would like to see some constituitonal history in the making, reversing the trends begun by Bush, Cheney, and that lawless crew that has run the White House like it was a biker bar for the past eight years.

Election Fraud and the Justice Department

President Bush is now asking the Justice Department to do what the Ohio Republican Party could not get the Supreme Court to do--look into 200,000 new voter registrations that some have called fraudulent. Information on registration cards did not correspond with information in a database of voters and, as such, they look suspicious to some.

On its face, this appears to be reasonable. Except that we have three contextualizing factors:

1. George W. Bush's Justice Department has been the most notoriously partisan of any recent administration, and "voter fraud" was the entering wedge that U.S. attorneys were supposed to use to disenfranchise people who were predisposed to vote Democratic. In case anyone forgot, this brought down Attorney General Albert Gonzales and shamed the administration. It led James Bovard to call for Bush's impeachment.

2. It has been a long-time tactic of Republicans to set up as many roadblocks as possible to prevent registered Democrats from voting. The usual saying is that Democrats do a better job of registering voters and Republicans do a better job of getting those voters to the polls. Perhaps Democrats would be better about voting if they didn't find that their registrations had been "lost" or destroyed, as in Fulton County (my county of residence, by the way) where 70,000 new registrations were found in the trash.

3. We are eight days from an election. For Ohio Republicans to attempt to disenfranchise 200,000 new voters--and for the President to suggest an investigation at this point--smacks of a cynical last minute ploy to keep Democrats sitting next Tuesday. If nothing else, the President ought to maintain an air of impartiality in the execution of his official duties. But then again, this president has exhibited an unprincipled ignorance of our Constitution, when not treating it with outright contempt.

Brinksmanship and the Debates

What is happening? The debate scheduled for tonight--the debate I made my students promise they would watch--is now in limbo. Its status has become a political football, and it's difficult to see who's in possession at the moment. Being an historian, I am curious about the narrative and its meaning, so let's pause to see if we can reconstruct the events:

At some point on Sep. 24, a conference call between the two campaigns ended with the suggestion of a joint statement that Congress should put aside divisions and figure out a plan for the current financial crisis.

John McCain made a prepared, public announcement later that day saying he was suspending his campaign and asking that the presidential debate be postponed.

Obama responded that the debates did not need to be delayed. He suggested that the time was ripe for a debate and that presidents need to multitask anyway.

McCain has further said he will not participate in the debate unless a consensus has been reached in Congress about the bailout plan.

This narrative changes by the minute, so this is already out of date. But the narrative is a curious look at politics on the campaign trail. It is, either sadly or gleefully, a parody of itself.

Nothing is funny about the financial crisis, except that the response seems to be to give the former CEO of Goldman-Sachs $700 billion in seed money without any legislative or judicial oversight or review. This is a page out of the FDR playbook, which tells us something about the constitutional direction of the new conservative movement.

But the response of the candidates is. First, John McCain reads from a teleprompter a statement saying that this has surprised us all and that we have to drop everything to guarantee a legislative solution. Let's drop politics, he says, and suspends his campaign.

Except that there is nothing more political than telling the nation that you are not political and (arguably, I know) using the crisis as a platform for a campaign slogan ("Country First"). And I doubt anyone really thinks otherwise. Certainly Obama didn't, who took the opportunity to remind everyone that the president needs to be vigorous and should be able to lift heavy objects and leap buildings and the like. The obvious implication is that McCain lacks such vigor. A clever, if somewhat mean, counterstroke.

But McCain then upped the ante by saying he WOULDN'T participate in the debate unless a consensus was reached. This is pure brinksmanship. He is virtually daring Obama to fly to the debate alone, and then have to turn his plane around for Washington.

But will it work? If McCain backs down and goes to the debates, he will have backed down (unless he can sell a compromise in the next eight hours, which is . . .). If he doesn't go, it's a huge gamble. Will it pay off?

Meanwhile, we're getting a taste of what the next president will have to deal with.

Elections and Constitutional Regimes

Recently, my posts in this blog have strayed dangerously from issues constitutional to matters political, a dangerous kind of slippage for anyone who purports to deal with the Constitution and its history. Nonetheless, the two are connected. Throughout history, the settlement of great constitutional questions has often been done politically rather than legally. But such change is usually tethered to elections and the kind of mandate that politicians can make from them. Is 2008 such a year?

Probably not. But before we analyze that, we need to lay some historical groundwork. There are very few national elections that we might call constitutionally transformative in our history. I would argue for the following elections as fitting within that category: 1800; 1860; 1896; 1936. Each of these elections brought not just policy change, but serious and new interpretations of the Constitution to bear against older alternatives. 1800, of course, makes the case for itself: the Federalists and the Democratic-Republicans cast the election in those terms, and there is no doubt that Jefferson's election set the terms for constitutional interpretation for the next sixty years. The unresolved question of the antebellum era was slavery, and those issues came to a head in the election of 1860, when a party won that was devoted to keeping slavery from the federal territories. It brought Civil War. The 1896 election was noted for the losers--the Populists. The subsequent co-opting of progressive reform into the Republican Party created the activist, muscular government (think Teddy after 1900) that enforced rules that the Supreme Court had attempted to subvert. Finally, 1936 was a repudiation of the Lochner-era laissez faire Constitution and the ushering in of the New Deal.

This is not to say that other elections have not had huge political impact. 1828 marked the birth of democratic participation in the presidential election; 1876 signaled the end of Reconstruction; 1912 demonstrated how divided the United States was (given that the socialist candidate netted a big percentage of the vote); 1968 spelled the end of Democratic dominance of national issues; 1980 brought conservatism into the mainstream. But these political changes (I would argue) did not necessarily auger the kind of constitutinal change that we might describe as transformative. They may have been transformative politically, but (to take but one example) the Reagan mantra of low taxes and higher defense spending was not in-and-of-itself a novel interpretation of the Constitution meant to replace rival views. It was, more properly, a policy disagreement with liberal democrats.

To return to 2008. I had initially imagined that *perhaps* we were living in a transformative age. The Bush White House has through a variety of means exerted executive power in new ways. When combined with a quiescent Congress (even after that Congress turned Democrat) it appeared that we were more and more coming within the gambit of an imperial presidency. The stakes, therefore, for this election seemed inordinately high. Would the next president augment that power, or bring the office within constitutional limits?

These issues, however, do not seem to animate the electorate. Not that they need to, of course--many of those who voted for Lincoln did not do so in order to change the Constitution. Nonetheless, the nation understood his electoral victory as the kind of mandate that would remove federal protection (and sponsorship) of slavery. It was enough to drive the slaveholding states to secession. And from their perspective, rightfully so. They saw the imminent end of slavery, even if that imminent end was not immediate emancipation, but rather the slow strangulation provided by refusing slaveholders access to western territories.

In this election, thus, we are confronted with a question that does not have an easy answer. Is anyone really concerned with the executive branch's grab for power in the past eight years? Are we concerned that our own civil liberties might be endangered by the Bush administration's (and Congress's) end-run around the suspension clause? (I refer here to the issues raised in Boumediene v. Bush, and encourage anyone interested in this subject to read my article in common-place about it.) Polls have focused either on the economy or Iraq, and news coverage has steadily ignored all constitutional issues, excepting abortion. (Mainstream coverage of this has, as usual, been awful.)

It was possible several months ago to see both Obama's candidacy and McCain's victory over Romney in the Republican primary as an indication that American voters were moving not just toward a new kind of politics, but repudiating the executive powermongers understanding of the Constitution.

I do not believe it is possible to view things that way now. Nonetheless, we are caught in the fog of war and perhaps this election might nonetheless prove transformative. But that will require statesmen to emerge amongst those (whomever they are) who win the election. It has happened before, of course. But there are also reasons that we have come to expect so little from politicians.

Introducing the New VP

What matters the VP pick? In modern politics, VPs were thought to be ticket balancers, meant to draw on geographical regions or voter blocs to help a party to win the election. Certainly this explained the choice of VPs in 2000, where Joe Lieberman gave the Democrats a northern flavor and Dick Cheney helped shore up Bush's conservative appeal. But Cheney's tenure has proved a sea change in presidential politics and constitutional relations. Famously secretive and resistant to traditional checks and balances, Cheney has elevated the vice presidency to new heights in terms of influence and policy decision-making. It makes us all look twice at who the VP candidate really is.

So, in 2008, Obama picked someone to reassure us all that he would collect seasoned political thinkers when he arrived in office. The choice was almost too measured, too safe. It didn't excite anyone. It didn't change anyone's mind (if the polls are to be believed). For McCain, the issue seemed just as urgent. At 72 and already evincing some disturbing lapses on the campaign trail (although he has kept a runner's pace that belies his age), everyone knows the VP choice would be important. The VP, after all, is one heartbeat from the presidency.

So he chose . . . Sarah who? It was a surprising move, to say the least. But, considering the framework of analysis above, it makes perfect sense. McCain needs to appeal to young voters. To women voters. He has been excoriated for being out of touch, and this gets him in good with the youth (as does, by the way, appearing with Daddy Yankee).

But given the kind of campaign that McCain and his supporters are running, the choice seems strange, and almost schizophrenic. McCain castigates his rival for not having the appropriate experience, and he chooses a 40 year old newbie as a potential successor. McCain runs ads aimed at disaffected Hillary Clinton supporters, then winks and nods at them as he trots out a woman to stand behind him. In short, this smacks of cynicism, clumsy politics, and--although it is probably much too early to tell at this point--desperation.

Sarah Palin is an unknown to me, and the VP pick (let's face it) should not be too important in terms of voting for a president. But it is the first glimpse of how a president would select advisers and cabinet members. We all know and remember the disasters of the Bush White House, which managed somehow to best the Clintons at cronyism and tried to turn the Justice Department into a kennel of conservative fighting dogs. It matters, in short, who these presidential candidates choose in the second position because we need to be assured that the president who comes to office will make wise decisions.

So, sorry McCain. This choice is a bit of the strange and a pinch too cynical to be of value. And I doubt you have really fooled anyone.

Excluded Wisdom and Transformational Moments

Allow me, if you will, to build on a post by another one of our bloggers (Donovan). His invocation of W. E. B. DuBois provokes one immediately to think about the many strands of thought that that American genius (expatriate, of course, in the end) wove together to fashion both political action and social criticism. DuBois's greatest trait, it seems to me, was his ability to fashion from many academic disciplines a sense of both wisdom and justice that he took very seriously. It is a point that we ignore at our peril, particularly when the dogs of political war begin barking about *meaningless* things like experience. It is, I surmise, much like the call for "change" in politics--a truism that means everything and, thus, nothing.

But it does raise an important point about the poverty of our current political discourse. Hillary Clinton's attack of Barack Obama's record on exceedingly frivolous grounds during Monday's debate (January 21) revealed both just how much is at stake in the Democratic primary, and how unwilling candidates (including, sadly, Obama) are unwilling to make a real statement about issues. This is sad for us, although we do little to help it by continuing to patronize the cable news networks that have made hash of journalism rather than augment our political intelligence. Perhaps only a mass boycott would change this--or perhaps more people consciously turning to intelligent news sources. This seems unlikely at best, and perhaps dangerously naive.

But I digress. The poverty of television journalism in the cable era is nothing new to Americans reared in the late-twentieth century. More important is perhaps that the internet has actually provided a forum whereby people can demand the kind of intelligent commentary that befits a widely educated population. We have opportunities, both through blogging and other means, to discuss how we see the issues and how we see presidential candidates (in both parties) addressing them.

As an historian, I am excited about the possibilities for the 2008 election. The Bush administration effected a constitutional coup in executive power (signing statements, warrantless wiretapping, going to war virtually without congressional permission, etc.) but has failed to create a one-party state the way Karl Rove envisioned. This simultaneous success and failure means that the next president will have a tremendous opportunity to reconstruct the presidency. This may mean that we continue down the path of increased executive power, or it may mean a reversion to a more balanced constitutional system. This is but one of the many issues that may be decided by our choice for president this year.

human rights and constitutional conundrums

Consider the following hypothetical scenario: A senior intelligence officer is informed that the CIA has established secret prisons abroad that are holding suspected terrorists. He is further informed that the CIA (with the indirect blessing of the Bush administration) has decided to use waterboarding and other methods commonly deemed to be torture in the process of
interrogation. That same senior intelligence officer is then called on to testify to Congress in closed hearings. Under oath, that officer then reveals this information. The senior intelligence officer also intimates that he cannot reveal such knowledge publicly because it would violate federal law (as in publishing state secrets). Those congressmen and senators had themselves signed a secrecy pledge thus binding themselves not to reveal sensitive information. Should a senator or congressman in possession of such information blow the whistle anyway? Would they risk jail time for doing so?

It would certainly raise an interesting constitutional question. Article I, section 6 grants freedom of speech for national legislators, and this ought to be protection enough
from political or legal threats (hat tip to Marty Lederman on Balkinization for bringing this discourse.net post to our attention). Precisely what sanctions would a member of Congress face for raising these practices in debate?

The constitutional conundrum, though, is not the real issue. As we lead into the 2008 presidential election, the question of the United States' commitment to human rights will be a central matter, particularly where the rest of the world is concerned. Our candidates (repubs and dems) have erred on the side of jingoistic hysteria and like to rehearse "get tough" speeches and soundbites during the debates. Witness, for instance, the immediate negative reaction to Barack Obama when, in debate, he was asked by Brian Williams what the first thing he would do as president if a terrorist organization attacked the United States. Obama's response--that he would have an emergency response ready so we don't get caught in another Katrina--was deemed weak and offensive.

Outright offensive, however, is the shameless behavior of Mitt Romney. He has suggested in debates that we "double" Guantanamo. Shockingly, he refused to denounce waterboarding as torture. Which brings us right back to where we stand in the presidential election of 2008. Although the corporate American media refuses to address the issue of international human rights, we must as a nation force our presidential candidates to account. It is time, for instance, for the Democrats to state plainly where they stand on these important issues. Hillary Clinton has ducked and dodged the question for too long, as has John Edwards.

We should not forget that elections are themselves constitutional procedures. And that it is elections when the people can speak the most forcefully on particular issues. The elections of 1800, 1828, 1860 and 1936 were all such moments when the people gave voice to a particular constitutional vision. Precisely how we treat 2008 has yet to be determined. Perhaps we need more input and voice from the most important, but most oft forgotten, constitutional actors there are: the People.